Davis Brown Immigration Law Blog

In our final note on the CBP/AILA liaison minutes published this week, we are providing a caution regarding CBP’s interpretation of the automatic visa revalidation rules that could be yet another trap for the unwary, albeit for a small sub-category of applicants.

Automatic visa revalidation is a rule that applies to trips to Canada or Mexico (primarily) for less than 30 days. If you are in possession of a valid I-94, but your visa has expired or you entered with a different status than the one you are currently in, you can be admitted without a new visa in certain situations.

One of the parameters for using this program is that you have not applied for a visa abroad.

When a person is applying for an E visa from Mexico (for Mexican investors or those involved in foreign trade), she is required to have a biometrics appointment with the Application Support Center in Mexico before the visa appointment is scheduled. The actual visa appointment is then scheduled 3 – 5 weeks later.

CBP is interpreting the ASC appointment as part of an application for a visa, which prohibits persons in this situation from utilizing the automatic visa revalidation rule for re-entry to the U.S. This means that the person will either have to wait 3 – 5 weeks in Mexico for the consular appointment or apply for a new visa to match her current status in the U.S. so she can re-enter during that time. Of course any visa application is inconvenient, and approval is not assured.

While this interpretation has limited applicability, it is more evidence of the trend of CBP interpreting rules very narrowly and certainly not in favor of travelers. The interpretation of the ASC appointment as part of the visa application itself could have other ramifications in the future.